Group Title: Annual freedom of information report, the Brechner Center at the University of Florida
Title: Annual freedom of information report
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Title: Annual freedom of information report
Series Title: Annual freedom of information report
Physical Description: Serial
Language: English
Creator: Brechner Center for Freedom of Information
Publisher: Brechner Center for Freedom of Information, University of Florida
Place of Publication: Gainesville, Fla.
Publication Date: 2003
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Bibliographic ID: UF00090021
Volume ID: VID00002
Source Institution: University of Florida
Holding Location: University of Florida
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THE BRECHNER CENTER


ANNUAL FREEDOM OF INFORMATION REPORT


Published by The Brechner Center for Freedom oflii-,,d ...i.. -, College ofJournalism and Communications U University ofFlorida
2003


Legislature approves five new

public access law exemptions


The Florida Legislature passed five
new public records exemptions during the
regular 2003 legislative session and in a
special May session.
During the main legislative session,
the Legislature passed a public records
exemptionforall information contained in
the putative father registry maintained by
the Office of Vital Statistics. It provides
that these databases are confidential and
exemptfrompublic disclosure.
The Legislature also passed an
exemption that makes any visual images
of a sexual offense victim confidential.
Beginning June 17 of this year, such
information is confidential and exempt
regardless of whether or not the victim is
identified.
The three other public records
exemptions that passed during the regular


legislative session included:
An exemption for all personal
identifying information contained in
records relating to an individual's health
held by local governments for the
purpose of determining eligibility for
paratransit services under Title II of the
Americans with Disabilities Act.
An exemption for information
deemed confidential under federal law
when provided to the Department of
Agriculture and Consumer Services for
purposes of food safety investigations,
federal-state contracts and partnership
activities, and regulatory reviews.
An exemption for credit scoring
methodologies and related data and
information that is a trade secret and filed
with the Office of Insurance
Regulation.


Florida voters approved an amendment
to the state constitution that requires a
two-thirds vote in the legislature in order
to pass a new Public Records or Open
Meetings exemption.
During
the 2002
legislative LEGISLATURE
session,
Florida lawmakers passed the bill that
placed the constitutional amendment on
the ballot for Florida voters.
Approximately 76 percent of Florida voters
approved the amendment.
Previously, an exemption only had to
win a simple majority of the votes.
Although a higher number of votes


now is needed to pass an exemption, it
may make little practical difference inthe
number of new exemptions.
Attorney General Charlie Crist clarified
his position on the two-thirds vote
requirement and its application to
reenactment of exemptions under
Florida's Open Government Sunset
Review Act (OGSR).
According to Pat Gleason, General
Counsel for the Attorney General's
Office, General Crist clearly and
unequivocally stated that he believes that
the two-thirds vote requirement applies to
all proposed open government
exemptions, including reenactment of
current exemptions under the OGSR Act.


U.S. Supreme

Court rejects

Alligatorappeal
The U.S. Supreme Court rejected an
appeal from The Independent Florida
Alligator for access to autopsy photos of
race car driver Dale Earnhardt, ending the
newspaper's two-year legal battle.
The Alligator requested access to the
photos as questions were raised about the
cause of Earnhardt's death and whether
better safety
equipment would A CES S
have saved his life.
The Earnhardt CASES
Family Protection Act,
which passed in 2001,
exempts public release of autopsy photos
without a court order and prevented the
newspaper from obtaining Earnhardt's
records. Before the law, autopsy
photographs were public information in
Florida.
The first lawsuit brought by the
Alligator challenged the law and its
constitutionality. It resulted in 7' Judicial
Circuit Judge Joseph G. Will ruling the law
was "valid and constitutional" and the
retroactive provision was constitutional.
The Alligator then appealed the ruling
to a three-judge panel of the 5" District
Court of Appeal, and the lower court
ruling was upheld. The newspaper then
petitioned the Florida Supreme Court,
which declined to review the case, without
explanation.
Its final petition was to the U.S.
Supreme Court to overturn the lower
court's decision.
The Orlando Sentinel and The South
Florida Sun-Sentinel also challenged the
law, with a lawsuit pending inBroward
County filed in the 4t District Court of
Appeal.
Annual FOI Report U 2003 1 B


Voters approve two-thirds vote

amendment to state constitution








State Attorney General tackles public record issues


Autopsy photographs or videotapes
may be shown for training purposes to
non-public agencies or associations when
a court has made the finding of good
cause, according to Florida Attorney
General Charlie Crist. However, the family
of the deceased must be notified and
have the opportunity to attend and be
heard at any hearing on the matter.
Access to sensitive information was
the subject of several official access
opinions issued by Crist during 2002 and
2003. These access opinions included:
Criminal history records (AGO
02-68) Law enforcement agencies that
have been ordered to expunge criminal
history records should physically destroy
or obliterate information consisting of
identifiable descriptions and notations of
formal criminal charges. However, criminal
intelligence information and criminal
investigative information do not fall
within the scope of section 943.0585,
Florida Statutes, in which a judge orders a
criminal history record sealed.
Closed meeting records (AGO 03-
09) There are no specific restrictions on
the dissemination of information
discussed at closed labor negotiation
meetings, other than work product
developed in preparation for and during
negotiations. There are, however, other
Florida laws prohibiting the disclosure of
such information, under certain
circumstances.
Domestic Violence records (AGO
02-50) Law enforcement agencies must
remove information revealing the home or
employment address, telephone number
or personal assets of a person who has
been the victim of domestic violence.
Court records (AGO 02-69)- Clerk
of the courts are not authorized to
permanently remove social security, bank
account, debit, charge or credit card
numbers from original court documents,
following a written request.
Social Security Number records
(AGO 03-23) The "legitimate business
purpose" exception does not authorize
towns to release the social security
numbers of its water and sewer system
customers to a private company that
intends to enter the social security
numbers into a computer database.


Other notable access-related opinions


Board voting requirements (AGO
02-40) Advisory board members who are
appointed by a Board of County
Commissioners and responsible for making
recommendations on county issues are


subject to
voting
requirements
for state,
county and
municipal
bodies.
Meeting
minutes (AGO


ATTORNEY

GENERAL

OPINIONS


02-51) Cities cannot adopt a rule of
procedure that approves minutes of prior
meetings without requiring that these
minutes be read or signed at a subsequent
meeting. Rather, a vote on the
concurrence and revisions of the members
should be taken at an open meeting with
the minutes and any changes or revisions
also discussed during an open meeting at
the time the board adopts the minutes
Not-for-profit corporation records
(AGO 02-53) -Not-for-profit corporations
are subject to the requirements of Florida's
Government in the Sunshine and Public
Records Laws when they lease property
from a county to establish and operate a
business.
Petition card records (AGO 02-
67) The use of a petition card to
indicate an elector's change of address
does not make the petition card a voter
registration record subject to restrictions
on inspection and copying, under the
FloridaElection Code.
County records (AGO 02-73) -
Confidential and exempt information must
be deleted from county equal opportunity
records prior to its release.
Competitive bidding (AGO 02-74) -
A governmental entity may disclose and
distribute documents in order to comply
with requirements for competitive
negotiation or bidding. However, the
entities or persons receiving the
information shallmaintainthe exempt
status of the information.
Board meeting quorum (AGO 02-
82) Physically-disabled members of city


committees may participate and vote on
board matters by electronic means if they
are unable to attend a public meeting, so
long as a quorum of the members of the
board is physically present at the meeting
site.
Re-adoptions of exemptions (AGO
03-18) The two-thirds majority vote
applies to any attempt by the Legislature
to restrict the public's access to executive
branch governmental records and
meetings, whether through the initial
creation of an exemption or the readoption
of such an exemption.
Voting Systems records (AGO 03-
26) Custodian of records of the
Department of State are required to make
maintenance manuals supplied to the
Bureau of Voting Systems Certification
available for examination and inspection.
State law must yield to the federal law on
the subject of reproducing, copying and
distributing copies of these manuals. The
Department of State should advise
individuals of the limitations of the federal
copyright law and the consequences of
violating its provisions; such notice may
take the form of a posted notice. It is
advisable for the custodian to refrain from
copying such records himself or herself.
Hospital meetings (AGO 03-33) -
The trial court's holding in Florida Health
Sciences Centers, Inc. v. Tribune
Company is not controlling law in the 19th
Judicial Circuit.
Schools:
School Board records (AGO 02-37)
- District School Boards are not authorized
to use a private company to produce and
copy public records. The district may
contract with private companies to provide
information also obtainable through the
district. But, it may not give up its duty to
produce such records and, thus, require
those seeking public records to do so only
through the company at whatever fee it
establishes.
Community College councils (AGO
03-28) Communities college councils are
subject to the Government in the Sunshine
Law, and must allow open meetings to the
public at all times.


2 B Annual FOIReport U 2003








Escambia County Commissioner spends time in jail


FormerEscambia County
Commissioner W.D. Childers was found
guilty on one count of violating the
state's Open Meetings Law and
sentenced to 60 days injail. Childers is
the first elected official to be jailed for
violating the open meetings provision of
the law.
On a second count, Judge T. Patterson
Maney also ordered Childers to pay a
$500 fine along with $376 for court costs
and $3,227.85 for the cost of the state's
investigation and prosecution.
Childers stands accused of discussing
public business with fellow
commissioners in private on four separate
occasions, and conferring with fellow
commissioners about redistricting.
FormerEscambia CommissionerMike
Bass was also sentenced for two


sunshine offenses, but avoided jail time
and ordered to pay $4,143.69 in total costs.
After serving all but
A CESS two weeks of his 60-day
t C E S sentence, Childers was
CAS S released on an appeals
CAS .ES bond. Maney granted
Childers the $10,000
appeal bond a day after Circuit Judge Jere
Tolton granted another $10,000 appeal
bond for a separate and unrelated bribery
conviction that sentenced Childers to a
three-and-a-half year prison term.

Other Officials Charged:
U Welaka Mayor Gordon Sands
pleaded no contest and paid a $500 fine
after being charged with violating the
Sunshine Law last year. The charge
stemmed from a discussion that Sands


reportedly had with another town council
member about nominations at a public
meeting. The county judge withheld
adjudication, meaning that Sands will not
have a criminal record.
Kissimmee city commissioners
Wendell McKinnon and Bob Makinson
were charged with violating Florida's
Open Meetings Law. Both pleaded guilty
to civil violations and faced a $50 fine and
court costs. The charges stemmed from a
private meeting between the two men to
discuss plans for a future meeting.
InDeland, OakHill City
Commissioner Bob Jackson pleaded no
contest to charges that he violated the
Open Meetings Law when meeting with
former CommissionerRonMercerto
discuss several issues scheduled to come
before the commission.


Employees can protect personal phone calls and e-mails


In two separate rulings, state courts
answered the question of whether
government e-mails and phone calls
deemed private or personal are exempt from
the state's Open Records Law.
In September of this year, the Florida
Supreme Court upheld a lower court
decision that personal e-mails contained in
city computers fall outside the definition of
public records because they are not
connected to official city business.
The Times Publishing Company sued
the City of Clearwater after requesting all e-
mails either sent or received by two city
employees over the city's computer


network during certain dates. The city
allowed employees to determine which e-
mails were "public" and which were
"private," releasing the "public" ones.
Times Publishing Company sought a
temporary injunction and an order to
make every e-mail available.
A trial court denied the company
injunctive relief. The 2n District Court of
Appeals upheld the trial court's decision,
stating that "personal" or "private" e-
mails are not considered public records.
The state Supreme Court agreed with the
District Court.
In a separate case, the Florida


Supreme Court refused to hear a case
challenging a decision that ruled
government employees can determine
which telephone records are private.
The lower court decision came after
three Florida newspapers attempted to
obtain cellular phone records for five staff
members in the office of former House
Speaker Tom Feeney. Feeney's office
responded to the records request by
providing phone logs in which all five
employees blacked out phone calls they
considered to be private. The court ruled
that personal calls fall outside the current
definition of public records.


Florida Senate committee holds closed-door meeting


For the first time in 30 years, a Senate closed the meeting with unanimous
committee met in a closed-door session support from members, invoking its post
authorized under a new Sunshine Law Sept. 11 rule for such a meeting.
exemption. The committee is responsible Discussed at the meeting was the "threat
for funding the state's counterterrorism net" program, which is an intelligence
effort and met in a closed system that takes tips and
meeting to review plans to A CESS leads to see if there is
expand Florida's homeland reasonable suspicion to
security technology. M EETINGS include that information in
The Home Defense, Public the intelligence base. The
Security and Ports Committee Florida


Department ofLaw Enforcement
requested $1.6 million
to expand the program.
"The meeting was closed so that
information that was provided in the
meeting could not become available to
those who could harm us by having
some of that information," said Sen.
PaulaDockery, R-Lakeland, the
committee chair. "...security and safety
are paramount."


Annual FOI Report U 2003 3







Series on access to FBI records wins 2003 Brechner Award


A freedom of information series by the
San Francisco Chronicle has been named
the 2003 winner of the JosephL. Brechner
Center for Freedom of Information Award.
The eight-page piece, titled "The
Campus Files: Reagan, Hoover and the UC
Red Scare," is the work of journalist Seth
Rosenfeld who challenged the FBI after it
refused his freedom of information
requests. After a 15-year struggle and $1
millionin

A C CESS expenses, the
bureau was
RECORDS ordered by a
RECORDS federa
federal
appeals court
to turn over more than 200,000 document
pages to Rosenfeld.
The series reveals how the FBI
engaged in unlawful intelligence activities
at the University of California at Berkeley
and tried to cover them up for 17 years.
His research uncovered how the FBI
conspired with the head of the CIA and a
member of the University's Board of
Regents to harass liberal faculty, students


and fellow regents; campaigned to destroy
the career ofUC President Clark Kerr;
forged a close relationship with Ronald
Reagan, who turns out to be an even more
active FBI informer than previously
disclosed; and sought to unlawfully
withhold public records by making
unfounded claims of national security.
"His series documents how government
corruption, when unchecked, can wreak
havoc on citizens," said Sandra F. Chance,
executive director of the Brechner Center.
"It demonstrates that freedom of
information is fundamental to government
accountability and an informed citizenry,
particularly in times of crisis."
In reviewing some of the FBI
documents, the 9' Circuit Court of Appeals
found "these documents all support a
conclusion that these reports were
compiled with no national nexus to a
plausible law enforcement purpose that
any purpose for compiling these
documents was pretextual."
"The later documents all strongly
support the suspicion that the FBI was


investigating Kerr to have him removed
from the UC administration, because the
FBI officials disagreed with his politics or
his handling of administrative matters," the
court said.
Rosenfeld's series, which he spent 22
years working on, is being recognized
nationally as an important case study for
the protection of freedom of information
laws.
The New York Times said: "The
documents should be required reading for
the Bush administration and Congress as
they consider how to reconfigure domestic
intelligence. These accounts of the FBI's
malfeasance are powerful reminder of
how easily intelligence organizations
deployed to protect freedom can become
its worst enemy."
The annual award was established by
the late Joseph L. Brechner, an Orlando
broadcaster. Previous winners include:
The Washington Post, the St. Petersburg
Times, The Dallas Morning News, the
South Florida Sun-Sentinel and the
Houston Chronicle.


Brechner Citizen Access Project rates state access laws


The Marion Brechner Citizen Access
Project produced a number of research
reports rating the open meetings and
public records laws of the 50 United
States and the District of Columbia during
2003.
"The goal of the Citizen Access Project
is to allow citizens and public officials to
better understand public access to local
government information in all 50 states,"
according to CAP DirectorBill
Chamberlin. The project, in the College of
Journalism and Communications at the
University of Florida, focuses on open-
government legislation across the United
States.
In its study on security and safety, the
researchers discovered that following
Sept. 11, 2001, state lawmakers across the
nation blocked access to government
records dealing with everything from
security response plans to criminal
investigations.
According to their report, states limited
access to government-held information
about building plans, evacuation


procedures, medical supplies and other
issues related to security.
"A lot of us worry about how much
information is now being kept from state
citizens," Chamberlin said. "It's one thing
to keep sensitive information out of the
hands of terrorists, but quite another to
use terrorism as an excuse to shield
government officials frombeing
accountable for their actions."
The researchers also discovered that
several state governments have
inadequate rules on official e-mail that may
limit public access to those records.
According to their study, 45 out of 51 laws
in states and the District of Columbia do
not specifically mentione-mail intheir
public records laws.
"This large number of laws that do not
directly deal with e-mail often hurt the
public's right to know in an era when
technology makes discussions between
public officials easier in cyberspace than at
the town hall," according to Chamberlin.
In its most recent study, the CAP
studied the availability of several


categories of education records in the 50
states, including personnel records, public
records, as well as documents held by
school boards, school administrative
offices and school libraries.
Chamberlin said he plans to release a
ranking of states that provide the most
and the least access to educational
records soon.
The Citizen Access Project will
eventually rate all the provisions of laws
governing access to information in each of
the 50 states through the use of a board of
access experts. They are rating each law
on a seven-point scale, from those with
complete openness to those that are
totally closed.
The project is funded by Marion
Brechner, an Orlando broadcast executive.
The Knight Foundation also provided
important early funding, Chamberlin said.
Details about the various research
findings, as well as links to other valuable
and informative resources are available on
the CAP Web site, at:
http://www.citizenaccess.org.


4 B Annual FOIReport U 2003




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